In Indiana, Employers Can Fire Workers for Being Gay or Trans—and They Do, All the Time

LGBT Americans now have the freedom to marry—but what about freedom from discrimination at work? That’ll take a new movement.

July 21, 2015

Demonstrators gather at Monument Circle to protest a controversial religious-freedom bill during a rally in Indianapolis, March 28, 2015. (Reuters/Nate Chute)

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Gregory Gilmore loved his $40,000-a-year job as an assistant manager at Restoration Hardware in the Fashion Mall of Indianapolis. He’d worked there since 2006, when he and his partner moved back to Indy from Kentucky in order to be closer to family. He appreciated that the upscale furniture chain offered domestic-partner benefits and that he could be openly gay among several other gay colleagues, in an environment where it seemed perfectly okay to talk about one’s same-sex companion or spouse.

This article was reported in partnership with The Investigative Fund at The Nation Institute.

“I liked the people and the product,” says Gilmore, 40. He says he served as acting store manager for six months, was sent to other cities to train new managers, and even was the first in his store to win a national-level service award. “I was really good at making morale happen and drumming up positivity,” he says. “I’d foreseen myself moving up.”

Everything changed around midnight on a Saturday in February 2012, when Gilmore participated in a naked-butt contest at 501 Eagle, a local gay bar. He didn’t show off his naked butt live; he let someone take a Polaroid of it and then display it alongside others at the bar. It happened that some colleagues came into the bar that night, too. Gilmore laughingly told them of his participation. “I didn’t win,” he notes wryly, “which only adds insult to injury to what happened next.”

Two weeks later, his boss called him. “We want to talk to you about what happened last Saturday night,” he says she told him. She’d overheard staff talking about the contest in a lighthearted way and asked Gilmore if it was true. He was suspended with pay and sent home, with no particular rationale. The very next day, he was summoned to a conference call with his regional manager. “They said, ‘Based on conversations we had with the executive vice president of sales, we’re terminating your employment,’” he recalls.

Gilmore’s termination notice, which he shared with me over e-mail, said he’d been fired for engaging “in behavior that violates our Standards of Conduct policy…as well as our Core Values: engaging in horseplay, disorderly conduct, malicious mischief or violation of common sense rules is unacceptable.” No such language appeared among the list of firing infractions in the copy of the company’s handbook that Gilmore also shared. Nor does the handbook specify whether the conduct policy applies to both on- and off-the-clock behavior.

So was Gilmore fired because his off-hours frolics were gay in nature? Restoration Hardware did not respond to several requests for comment. Gilmore says that at no point did his managers explicitly object to the fact that his behavior took place in a gay bar. But he also says that he socialized regularly with both straight and gay colleagues and there’d been all sorts of off-site shenanigans, including underage drinking and colleague hookups. A former co-worker, a gay man who asked not to be named, told me that Gilmore’s firing, which management refused to explain to workers, put enough of a chill on their store to prod him to leave for a job in another state. “I thought, what if I’m making out with a guy in a bar one night and a colleague walks in and tells on me?”

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But the larger question is, what could Gilmore do about it if he could prove his manager was creeped out by his horsing around in a gay bar? The answer is less clear than most Americans appreciate. Even within the state of Indiana, it depends upon where you live, which set of rules you consult, and whether you’ve got both the awareness to identify discrimination and the will to defend yourself against it.

"They’d live in towns an hour away so coworkers would not see them at the grocery store with their partner."

Most people are like Gilmore—they just go away. After the firing, he and his partner, who also works in retail, used money from their 401K to open Toolbox Men’s Supply Company, a store in Indy’s quaint gayborhood that sells stuff like colorful jockstraps. He says, “We always wanted to open a store like this, so in a way the firing was a blessing in disguise.” Maybe so. Still, they are a one-income household now, as all of the store’s profits go back into the business. And Gilmore’s ability to opt out of the workforce is a relative privilege.

Decades worth of national and local surveys have found that gay and lesbian workers report widespread job bias. In a 2013 Pew Research Center survey of more than 1,000 LGBT adults, 21 percent believed they’d been treated unfairly by an employer because of their identity, and 23 percent said they’d received poor service at a restaurant, hotel, or place of business. Transgender people seem to have it the worst: In a landmark 2011 nationwide survey of 6,450 transgender and gender-nonconforming folks, 90 percent said they had been mistreated at work; 47 percent said they’d been fired, not hired or not promoted; and 19 percent said they’d been denied housing. All of this has a real economic impact: Several studies over the years have found that anywhere from 22 to 64 percent of transgender workers earned less than $25,000 a year, or less than half the national median income.

“They often end up taking discrimination on the chin, because it’s very difficult to get legal recourse,” says Ineke Mushovic, executive director of Movement Advancement Project, an LGBT think tank with a focus on legal rights. “A year and a half ago, we talked to LGBT people in rural areas in states that are politically hostile to them, and they said they went to great lengths not to be out at work. They’d live in towns an hour away so coworkers would not see them at the grocery store with their partner, or they’d take lunch breaks alone.” They chose discretion, because they were likely powerless in the face of bigotry.

* * *

Indiana is one of 29 states in which private-sector antidiscrimination laws exclude sexual orientation and gender identity as protected classes alongside race, color, religion, sex or national origin. (Another three states—Wisconsin, New York, and New Hampshire—have laws that include sexual orientation but not gender identity.) That means that discriminating against most LGBT people in those states is legal.

A patchwork of cities and counties across the country—at least 14 in Indiana—have ordinances that offer local-level protection for LGBT people against bias in the workplace, housing, or public accommodations. Similarly, some public employees are protected by executive orders. In Indiana, two gubernatorial orders—signed by Governor Joe Kernan, a Democrat, in 2004 and Mitch Daniels, a Republican, in 2005—protect LGBT state employees. President Obama signed an order last year that protects federal workers. “But if something occurs in the private sector, LGBT people currently have no protection,” says Karen Celestino-Horseman, one of several civil-rights lawyers I consulted in Indiana. The lawyers told me they get calls frequently from gay and trans folks who think they’ve been discriminated against—and usually, they have to turn people away. “There’s just no state law in Indiana” with which to press charges, says Kim Jeselskis.

The Equal Employment Opportunity Commission has tried to fill the legal gap. On July 16, the EEOC concluded in a 3-2 vote that discrimination based on sexual orientation is a form of sex discrimination and hence violates Title VII of the 1964 Civil Rights Act. (Several circuit courts have ruled otherwise, meaning this may be a legal question the Supreme Court will have to settle someday.) The vote follows by three years a similar EEOC vote in favor of classifying discrimination based on gender identity as a form of sex discrimination—a logic it applied to the case of Mia Macy, who was denied a federal job after she explained that she was planning to transition to living as a woman. EEOC’s defense led to a 2013 Department of Justice ruling in Macy’s favor, requiring that she be offered the job with back-pay and legal costs, and that the workplace implement anti-discrimination policies.

I was struck by how normal of an occurrence discrimination seemed to be in the lives of gay and trans Hoosiers.

Nonetheless, LGBT people are not an explicitly protected class under federal law—as are, say, people with disabilities under the Americans With Disabilities Act—and civil-rights advocates say this reality will leave LGBT workers increasingly vulnerable if the Supreme Court’s marriage-equality ruling spurs a backlash in conservative states. In the past year alone, as marriage equality nationwide seemed increasingly inevitable, state legislatures considered dozens of new anti-LGBT bills.

Matt McTighe, a longtime marriage-equality advocate, is now a campaign manager at the newly formed Freedom for All Americans, which promotes LGBT-protection laws federally and in all states. He argues that a counterpunch against the marriage victory was inevitable. “A majority of Christians across America believe that the law should treat LGBT people equally,” he says. “But there are, no doubt, some who are trying to use Christian values as part of a last-ditch attempt to legalize discrimination.”

Indeed, as soon as the Supreme Court ruled in favor of gay marriage, many started wondering just how far the principle of religious freedom could go in undermining the ruling. Even Justice Anthony Kennedy, who cast the deciding vote in the marriage-equality case, noted that religious liberty was still in play, urging in his written decision that people on both sides of the marriage issue engage in an “open and searching debate.”

Indiana has already shown how confounding that debate may become.

In March, Republican Governor Mike Pence signed into law the Religious Freedom Restoration Act (RFRA), allowing individuals and businesses to refuse participation in anything that conflicted with their religious beliefs. Outraged civil-rights advocates charged that the law would trump local bans on anti-LGBT discrimination; the law’s equally outraged supporters said it did nothing of the kind. “This bill is not about discrimination,” Pence said upon signing it, “and if I thought it legalized discrimination I would have vetoed it.”

He was echoing the sentiments of antigay, “pro-family” activists who have for decades promoted such religious-freedom laws. As Micah Clark, head of the Indiana chapter of the American Family Association had written, “[P]erhaps the biggest lie about this law is that it is a vehicle for discrimination.… [It] does not allow a person of faith to deny service to someone, nor should it. No Christian bakery owner should say that people involved in homosexual behavior couldn’t shop in their bakery…. However, when a customer seeks special participation from the baker, asking him or her to specially decorate a ‘gay’ wedding cake…then there is a very different line crossed.”

A national uproar ensued, with everyone from Hillary Clinton to Apple chief executive Tim Cook saying that the law gave legal cover to turn LGBT people away from jobs and services. Major businesses including Yelp, Salesforce, and even college basketball’s NCAA, which is based in Indianapolis, threatened to shun the state. Greg Ballard, Indianapolis’s Republican mayor, condemned the law. Finally, the state amended the law to say it did not authorize discrimination against LGBT people. A similar storyline played out simultaneously in Arkansas.

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Indiana’s amended RFRA marked a turning point, however. It “was the first time [sexual orientation or gender identity] has been mentioned in Indiana state law,” says Katie Blair, advocacy director for the Indiana ACLU and a key LGBT advocate here. “That’s why I call Governor Pence an LGBT trailblazer,” she adds, laughing.

Ironically, the invisibility of LGBT people in the eyes of state law, in Indiana and elsewhere, may be due in part to their increasing visibility in mainstream politics. A 2013 Huffington Post poll found that 69 percent of respondents believed, wrongly, that federal law already bars employers from firing people because they are gay or lesbian. And at a time when LGBT culture is increasingly en vogue, unchecked bias in states like Indiana may be driving a surprising number of people like Gilmore out of mainstream public life.

* * *

I recreated my own, unscientific version of a discrimination survey in gay bars and clubs throughout Indiana in May. I was struck by how normal of an occurrence discrimination seemed to be in the lives of gay and trans Hoosiers, and the way in which their stories echoed Gilmore’s—the bias shrouded in reasonable doubt, the victims confused about whether and how to respond, and most episodes concluding with an LGBT person’s retreat from the mainstream.

At Someplace Else, a popular gay club in Evansville, on Indiana’s southern border with Kentucky, a 33-year-old bartender, who withheld his name, told me that a decade ago he’d been happily employed as a teacher at a nearby private school for kids with disabilities. “My coworkers knew I was gay and they didn’t care,” he said. “Then a grandparent came in and threw a fit, called me a pervert and told the school, ‘He needs to go.’ So I got ‘promoted’ to another, non-teaching part of the company.” That was the end of his teaching career. “I was sad, but at least I didn’t get fired,” he told me. “I wanted to teach, but actually I make more money now bartending.”

Also at the bar was “Lee,” 45, who told me that once folks in her small town learned she’d left her husband for a woman, she was turned away from a job at every fast-food restaurant in the area. “I’m going back to school because I’m pretty much blackballed out of a job,” she said. Upstairs in the cabaret room, as an Elvis-like drag king performed Cee Lo Green’s “Fuck You,” a guy named Patricio, who lives in Bloomington, told me about being fired from his job as a health teacher because he talked about HIV/AIDS and LGBT issues. Another guy said he was fired at his job for wearing an AIDS ribbon.

“People say to me, ‘Oh, you’re so strong,’ but this is such a lonely road.” -Stephanie Peckham on anti-trans bias

But the southern half of Indiana is the state’s most conservative area. It’s part of the Bible Belt, an endlessly flat expanse of highways crisscrossing through corn and soybean fields, with mega-churches and Jesus billboards at regular intervals. The northern half is more a part of the Rust Belt, starting with Indianapolis and stretching up to Detroit and Chicago, with large populations of Eastern European Catholics and African-Americans. The north lends the state a more moderate political and cultural reputation, but even there, stories of anti-LGBT bias were easy to find.

At a gay bar in Hammond, not far from Chicago, William Sibley, 24, told me that when he’d gone into a major regional department store two months before to apply for a job, the manager told him flat-out, “I don’t hire gay people—we’ve had a problem with them in the past.” Sibley simply walked out, he said, figuring that was the manager’s prerogative. He told his dad about it. “He said, ‘That’s life.’ He doesn’t like me being gay either.”

In Muncie, an hour north of Indianapolis, I met Stephanie Peckham, 50, a tattooed, bespectacled transgender woman. Before transitioning to a woman, Peckham told me, she’d worked in the correctional system for 20 years, rising in the ranks from correctional officer to custody supervisor and earning raises from $7.55 to $29 per hour. She quit in 2012 and, while away, pursued her gender transition. “I enjoy corrections,” she told me. “I like helping people make a positive change in their life.”

After her transition, which she documented on Facebook, Peckham tried to reenter the correctional system’s workforce, but she was turned down, she says, for 30 different positions over the course of 18 months. When she complained to the state Employee Relations Department, she says, she was told by its director, Bruce Baxter, that “they didn’t want a male-to-female transgender person working for the department of corrections.” After she told them she’d called the ACLU and the governor’s office to complain, she was offered a starting-level position in the reception area of a men’s prison 80 miles away from Muncie, versus a facility 25 miles away. The job started at $12 an hour, not much more than the pay she’d earned as a rookie 20 years earlier. She took it. She was caring for her elderly father and needed the money. “I didn’t want to make any more waves,” she said.

Once on the job, problems continued. There were no training or bylaws at work related to LGBT bias, she says. Her supervisors told colleagues not to talk to her, “because I was looking to sue everyone,” so she was isolated. She suffered repeated harassment from inmates—“I was called a fag, a dude in a skirt, only there to suck dicks”—but her complaints to management fell on deaf ears. She was refused repeated requests for a transfer to a women’s facility. She filed multiple hostile-work-environment complaints and was ignored for months. In April of this year, she said, she was fired after she defended herself against an inmate who assaulted her, injuring her wrist. (In an e-mail, Indiana’s State Personnel Department confirmed Peckham’s firing, but declined to comment further on her complaints.)

Peckham has retained two lawyers in Indianapolis, Celestino-Horseman and Leslie Barnes. Celestino-Horseman declined to detail a course of action for Peckham, but pointed out that discrimination against public-sector employees is illegal under the decade-old gubernatorial order. Theoretically, she could also take her case to the EEOC, as it bears similarities with Macy’s successful case, which the EEOC got behind.

But there’s a difference between the theory and the reality of pursuing either of these remedies. “I filed for unemployment, but that won’t cover my $700-a-month in bills,” Peckham said. She is now without insurance to continue her hormone treatments and faces paying for them out of pocket. She knows that even if she is ultimately compensated for the alleged bias, “that could take years.” She’s enrolled in a local beauty school to start a new career, since she feels that even if the state were forced by law to take her back someday, she’d be unlikely to receive a warm welcome. Meanwhile, she says, she’s received death threats from Muncie neighbors simply for walking in front of their homes in a dress.

She turned away from me at the bar, crying. “This is the worst place I’ve been in my life,” she said. “I’ve considered suicide. I come here a lot,” she said, referring to the friendly atmosphere of the Muncie bar, where LGBT folks mingle with open-minded college students. “People say to me, ‘Oh, you’re so strong,’ but this is such a lonely road.”

* * *

Even local ordinances—which have begun spreading in Indiana, in reaction to the RFRA controversy—have precious little enforcement or compensation power. Evansville’s ordinance, for example, lets an alleged offender off the hook if they decline to cooperate in an investigation or arbitration. “I’m convinced that someone here has little incentive to bring [a claim] to our agency,” says Robert Dion, who chairs the city’s human-rights commission.

Often, LGBT Hoosiers who try to defend themselves are surprised to learn just how little recourse they have. Such is the case with Angie Alexander, a married lesbian with two adopted girls who says she was hounded out of a job she loved by a work environment that enabled anti-lesbian harassment.

In May 2013, Alexander took a front-desk job with an Indianapolis health clinic. She says that a coworker told her, “A family really should be a man and a woman. How can you and your wife be intimate together?” Worse, Alexander’s boss told her that by having her wife and kids drop by at lunchtime, she “made that coworker feel weird.” The boss asked her to take her family directly to the break room to accommodate the offended coworker.

The last straw was when a new manager wrote up Alexander for using her cellphone at work, even though, she says, staffers routinely used their personal devices on the job. The new manager, she says, admitted to her that she’d been pressured by higher-ups to make the write-up. Feeling as though managers were maneuvering to fire her on a non-LGBT pretext, Alexander filed a complaint with the state Civil Rights Commission, only to find out LGBT folks weren’t covered. So she appealed downward, to Marion County, where the equal-opportunity law covers both sexual orientation and gender identity.

Indiana is one of 29 states in which private-sector anti-bias laws exclude sexual orientation and gender identity.

When the county stepped in on her behalf, said Alexander, “my company’s vice president called me alone into a room with a bunch of other managers, saying that if I took my complaint off the table, they’d hire me back.” She turned down the offer, arguing that the company needed diversity training, too. But the county eventually brokered a deal: Alexander would sign an agreement to drop all further charges and her employer would let her go with four months of salary plus unemployment.

Fresh out of surgery and worn down with the process, Alexander took the deal. “I thought, ‘Will they make my life miserable if I push the case?’” she said. In December, she left the job, which she can’t name because of the agreement she signed. She wasn’t, technically, fired, but she feels she was harassed into leaving a job she’d very much needed. Since then, as she and her wife prepare to adopt a third child, they are living on one salary.

Indy attorney Amy Debrota, who is looking at Alexander’s case, says she may still have room to push her complaint with the EEOC, given the agency’s broadened definition of sex discrimination. It has already litigated and filed amicus briefs in a handful of such cases (mostly involving transgender plaintiffs). “LGBT people can bring these cases to us and we’ll do our best to work with them,” says Justine Lisser, an attorney in the EEOC’s communications office, which last year also started coding LGBT complaints separately. Thus far, the office has logged 806 LGBT-related complaints for 2013 and 1,092 for 2014.

* * *

The difficulty that Alexander and Peckham faced in defending themselves from what felt like bias, despite nominal protections via local laws or executive orders, illustrates why clear state and federal statutes barring bias are crucial: to discourage discrimination in the first place. Civil-rights attorneys point out that bias cases, even for protected classes like race, sex, and religion, are rarely slam dunks. Discrimination often takes the nebulous form described by Gregory Gilmore. And of course, longstanding protections for people based on race, sex, religion, and other factors have hardly wiped out discrimination toward them. But research indicates that such laws, when well promoted and enforced, have a strong deterrent effect.

They also push the labor market towards more fair pay.

A 2001 National Bureau of Economic Research study correlated passage of federal and state-level antidiscrimination laws with jobs data from the Census. Researchers found that, broadly speaking, such laws have had a positive effect on wages and employment for black and female workers, corroborating the findings of prior research. Says the paper’s cowriter, University of California, Irvine, economics professor David Neumark, “If you look at black economic progress over many decades, I don’t think there’s any disagreement that the laws” have yielded “positive employment effects.”

So far, research suggests the same would be true for LGBT people. Ian Burn, Neumark’s PhD student at Irvine, has looked at Census jobs data between 1990 and 2012 for gay men—he excluded women to rule out the sex-discrimination factor—who historically have made 10 to 32 percent less than their straight male counterparts. His unpublished study found that after states wrote sexual orientation and gender identity into their antidiscrimination laws, wages for gay men went both up and down, depending on the strength of the law. In jurisdictions with toothless laws, like the one in Evansville, Indiana, wages actually went down; whereas in places where anti-bias laws included penalties, gay men saw a 2 to 4 percent increase in employment and a 3 to 7 percent increase in wages.

Most observers agree that what’s required now is a federal statute—though exactly what statute is a newly open question. The Employment Non-Discrimination Act (ENDA), a bill that would ban bias against both sexual orientation and gender identity in the workplace, has been languishing in Congress for more than 20 years. Freedom for all Americans would like to scrap the law and replace it with a more comprehensive bill that would also include housing, credit, and education.

At the Movement Advancement Project, Mushovic (while clarifying that her group does not lobby) agreed that ENDA needs to be supplanted by broader legislation. “Otherwise,” she said, “you end up with a bill covering employment, which would be an advancement, but what if you don’t have a place to live because you can be kicked out of your house? Or out of a restaurant because you’re celebrating your same-sex anniversary there? Or if your kids are getting bullied in school?”

Advocates agree that such a law won’t emerge overnight. “We’re gonna take a few years,” says McTighe, adding that a new bill, which his group aims to pass by 2020, is still being drafted and lacks sponsors in Congress. “Just like with marriage equality, we have the opportunity to harness the momentum of record-high public support [for LGBT-inclusive laws] and take an incremental approach combining public education with advocacy,” he said. “The work is so far from over.”

I am very glad that the Nation brought this up right now, while the marriage equality issue is being celebrated. While I am like man people real pleased with this ruling by the Court, which I did not expect this early in history, I'm a hell of lot more perplexed over the employment question.
This one is pay dirt for most of us. The biggest question in our lives. Still. What will happen to us at work? What kind of work will we be allowed to take? Do we have any job security at all? The truth is stated well here, I have seen it many times. Gay people just walk away, rather than endure the debasement the culture heaps on us when we are hassled for being ourselves (including trans persons). It is so damn sick and is still going on all across the country, some places worse than others.
Marriage is great but a lot of us just want a job we will not be hassled at. And no, we will not all be able to come out, nor should we have to. I personally have known quite a few men in the trades who don't need to come out, they need legal protection. Would that the straight community get that through their well intentioned thoughts. Of course, if they know you're gay down at the shop, so be it. But they should not be able to fire you in 2015.